Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 128 (AAC)

Fecha: 20-Mar-2023

Disposal

Disposal

59.

The Council’s primary submission was that the Tribunal’s decision contained clear error of law. If the Upper Tribunal agreed, it was invited to set aside and remake the decision in accordance with s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Should the appeal succeed, the Upper Tribunal should remake the decision because there was only one possible answer – T was out of the country at the time of the cease to maintain decision and the appeal hearing; therefore the appeal should have been dismissed.

60.

For the avoidance of doubt, the Council did not accept that the appeal was academic because:

Heading
Introduction
Background
The Tribunal’s Decision
Permission to Appeal
Ground 1: the Tribunal erred by concluding that the Council was not entitled to cease to maintain T’s EHC Plan. T was no longer in the Council’s area; therefore the decision to cease to maintain was c
The Legislative Framework
“ Interpretation
The SEND Code Of Practice
The Armed Forces Covenant: the Council
The Factual Background
The Extent of the Issue
The New Evidence
the s.42(2) duty had been described as absolute and non-delegable: R(M) v Harrow LBC [1997] ELR 62, R(N) v North Tyneside BC [2010] EWCA Civ 135 at [27], R(ZK) v Redbridge LBC [2020] EWCA Civ 1597 at
regulation 2(4) of the 1996 Regulations was clear that the definition in regulation 2(2) was confined to the application of the 1996 Regulations and had no bearing on the question of which local autho
the role of the Tribunal in an appeal was to stand in the local authority’s shoes as at the date of the hearing. It performed an inquisitorial function and remade the decision, as opposed to performin
The First Ground of Appeal
The Second Ground of Appeal
The Third Ground of Appeal
as per Ground 4, the Tribunal erroneously concluded that an EHCP could be paused or frozen The Fourth Ground of Appeal
Judge Ozen considered that it was relevant to ask whether the Council remained responsible for T during his time in Dubai. She cited the 1996 Regulations as being relevant to that question, a position
in any event, in R(G) it was held that it was for a local authority to determine whether an individual lived in its area (for the purposes of a provision in the predecessor legislation which was equiv
the parents relied on s.42(5) of the 2014 Act , but the Council did not make any decision as to the school in Dubai being a suitable alternative arrangement. The decision to move to Dubai and find an
Disposal
at the time of the hearing, and when permission to appeal was granted, T was still in Dubai
S.45 of the 2014 Act (“the statutory procedure issue”)
The legislative provisions governing an authority’s decision to cease maintaining an EHCP
The decision below
“the process of consulting the child and obtaining their views is integral to the decision-making processes of the local authority” under s.45(1) , see R(Milburn) at [45] upon the presentation of an in-time appeal, the ceasing decision was suspended
S.24 of the 2014 Act (“the local authority area issue”)
Purported jurisdictional issue
R(G) was not authority for the proposition that the question whether a child lived in a local authority’s area could only be challenged by judicial review. That case simply stated that the question wa
the Tribunal plainly was empowered to determine whether a child was or was not in the local authority’s area as part of its jurisdiction under the 2014 Act . That was a necessary and natural corollary
Ordinary residence test
the regulation determined residence expressly according to a test of ordinary residence. That was consistent with the other legal provisions set out above. It was further evidence that s.24 imposed a
the residence of a child would almost always be aligned with the residence of his primary carer (save for some very narrow exceptional circumstances). It would be illogical for the question of residen
Temporary absence
the only place where T and his family had lived was Hampshire: “ We went to Dubai with a very clear understanding that Hampshire remained home and we would be returning to Hampshire after the end of t
the Navy acknowledged that T’s home and family remained in Hampshire: “ The Navy also shared the same understanding that my family and I would return to Hampshire. The Navy offers all personnel on dep
T’s family and social network was in Hampshire: “ Hypothetically, in the case of any emergency requiring deployed personnel to vacate the country they are deployed to, the Navy would be responsible fo
the Navy recognised that T’s home area was Hampshire and had arranged for replacement accommodation there for him on return from Dubai: “ Ultimately we did return early and our house will not be avail
The Second Ground of Appeal
the judgment below had to be considered holistically: it was clear that the Tribunal considered all the documentation before it and turned its mind to questions of law and fact. It formed its own view
The Third Ground of Appeal
The Fourth Ground of Appeal
Finding of prejudice was permissible
the Council asserted that “ Contrary to the Tribunal’s analysis, it is not ‘unfair’ that individuals in the latter scenario lose their right to an EHC Plan – that is just a consequence of them moving
the Council asserted that the “ Tribunal appears to have assumed that transferring an EHC Plan under regulation 15 procedure guarantees continuity of provision in the terms of the inherited EHC Plan ”
Pause of EHCP
the Code of Practice provided, inter alia, that local authorities should ensure that their provision did not disadvantage children because of their parents’ lifestyle, including deployment and to cons
the Armed Forces Covenant contained in the 2006 Act required the local authority, when exercising that discretionary power, to have due regard to the unique obligations of, and sacrifices made by, the armed forces
s.45(1) bestowed a discretion on a local authority to cease to maintain an EHCP: “a local authority may cease to maintain an EHC plan for a child”. That was also, apparently, the view of the Secretary
the question before the Tribunal was whether the Council came to the correct conclusion that “T is no longer in full-time education or training in England from September 2021. Accordingly, T’s Educati
the Council precluded itself from answering the question of suitable alternative provision by (i) contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and (ii) by
The 1996 Regulations/The Belonging Regulations
the effect of the amendment effected by the insertion of regulation 2(4) in light of that background the statement in paragraph 2.4 of the consultation paper to the effect that “The forthcoming Children, Skills and Learning Bill will address the mean
the position given that that legislative amendment was apparently not made good the DCFS 2009 “Guidance on Looked After Children with Special Educational Needs placed out-of-authority”
The Council’s Further Submissions
in R(L) the Court at paragraph 17 expressly found that regulation 7 of the Belonging Regulations applied on the facts. (Footnote: 1 ) However, in the present case, the parents were not able properly t
the decision was inconsistent with R(G) , a later authority. It was evident from the judgment in R(G) that the High Court heard full argument about ordinary/habitual residence principles and cited rel
the Belonging Regulations had been amended since the decision in R(L) by insertion of regulation 2(4). The case of R(G) considered the Belonging Regulations in their amended form, which was another re
The 2009 consultation paper
the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach The effect of the amendment effected by the insertion of regulation 2(4)
The statement in paragraph 2.4 of the consultation paper
The DCFS 2009 Guidance
Conclusion
The Parents’ Submissions
s.24(1) of the 2014 Act should be interpreted as denoting a test of ordinary residence the judgment in R(L) was no longer good law. The legal effect of regulation 2(4) of the Belonging Regulations was simply that they did not dictate the meaning of s
Submissions
guidance from a public authority about the interpretation to be given to a statutory term might be persuasive authority: Hyman and another v Revenue and Customs Commissioners [2022] EWCA Civ 185 , [20
The Parents’ Further Submissions
The Council’s Further Submissions
there was no reference to the Belonging Regulations – supporting the Council’s position that they were irrelevant
the Department supported the Council’s contention that the decision to cease to maintain was discretionary and could arise in situations where a family moved abroad (page 4 of the Guidance). Consisten
it did not consult with T’s parents as required by regulation 31(1)(b)
disagreement resolution services; and advice and information about matters relating to the special educational needs of children and young people; and
Jurisdiction
R(G)
The Belonging Regulations
the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach
A Child “in the Authority’s Area”
R(Stewart)
The Armed Forces Act 2006
https://researchbriefings.files.parliament.uk/documents/CBP-9072/CBP-9072.pdf .)
Application of the Ordinary/Habitual Residence Test
The Second Ground of Appeal
The Third Ground of Appeal
The Fourth Ground of Appeal
Conclusions